Waivers: Covering Potential Risks
Why you should — especially after COVID-19 — review your waivers to ensure your facility is covered for all potential risks that may arise.
2020 introduced new challenges and new risks to health clubs everywhere. As your facility starts to bounce back from these setbacks, it is important to look at your waivers and member contracts.
“This is one of the key times to have your contract reviewed by your attorney,” said Brian Rawlings, the practice leader for FITLIFE. “Coming out of the pandemic your business model may be altered — possibly with changing amenities and services offered within the club, or with online personal training or group exercise offerings. Your counsel can advise as to any amended wording regarding communicable diseases or what is occurring in current case history and statutes.”
Talking to an attorney is a great way to ensure your waivers cover all potential risks. Rawlings explained sitting down with an attorney and reviewing the many exposures of your club and determining if there should be any layering of waivers — having an additional waiver for a specific activity such as a spa service, climbing wall, etc. — is vital.
Max Goodman, a partner at the law firm SmithAmundsen, LLC, agreed clubs should hire experienced attorneys to draft their waivers to apprise members of the widest possible array of injuries likely to happen at your club specific to your offerings.
“If you run a club focused on kettlebell intervals or tire flipping, your waiver should mention ‘kettlebells’ or ‘tires’ respectively,” explained Goodman. “An attorney can also advise whether your state enforces waivers signed by minors and their parent/guardian so you can implement appropriate policies and plan accordingly. For the gaps in exposure not covered by waivers, be sure to have proper insurance coverage and to raise any potential legal issues to counsel immediately.”
Another aspect to keep in mind when it comes to waivers and contracts is cancellation policies.
“As clubs reopen, it is wise to revisit your club’s cancellation policies,” said Goodman. “Contracts requiring members to cancel in person are no longer appropriate following the pandemic and requiring members to jump through cancellation hoops may run afoul of consumer protection laws.”
Goodman advised clubs to have member contracts with clear, concise and easy-to-follow cancellation policies. Any policies regarding “freeze fees” for memberships should also be clearly denoted in the member contract and should always be provided to members by email.
Bill McBride, a co-founder, president and CEO of Active Wellness, said clear and concise documents are key to ensure your members can easily digest the materials. McBride — who recently added language to his waivers about off-site programming, virtual programming and infectious disease — recommended asking members to acknowledge known and unknown risks.
“We do all we can to provide a safe environment and programs,” said McBride. “We require certifications, comply with all laws and put our members’ and staff’s safety first. We encourage members to use good judgement, adhere to their doctor’s recommendations and comply with all club rules and policies. We have rules and policies to ensure safety and excellent member experiences.”
McBride also advised being straightforward and appropriate in your documents based on each state or local jurisdiction on font size and language. Don’t try to hide anything. Be transparent and keep them as short as possible. This is something Goodman echoed.
“Member waivers and contracts should be as short as possible,” said Goodman. “No legalese is needed. Both documents should be emailed to members automatically with a record of that email preserved in the member’s file. While each document should be short and easy to comprehend, clubs should never allow members to cross out clauses or add in their own terms without consulting their attorney.”
Overall, waivers allow clubs to have an injured member’s lawsuit dismissed at litigation’s earliest stages. The key to an effective waiver is specificity.
The last thing to keep in mind when it comes to reworking your waivers is they only work if they fairly warn the member of a hazard that ultimately causes their injury.
“Waivers should include language warning members that by signing this agreement, they acknowledge the risk of injury from equipment as well as instruction and advice from personal trainers, including nutrition advice if applicable,” said Goodman. “Simply including a ‘catch-all’ term warning of risks from ‘anything and every possible injury’ will not work. It is critical to have a lawyer draft your waiver and to advise you concerning how your state treats waivers, because not all states recognize a waiver’s protections to the same degree.”